Arbitrator: Depleted
As restrictions are revived in the UK this week, it struck me that I have not interacted in person with anyone in my professional capacity since the beginning of March. Whilst I am extremely active speaking at webinars, having virtual coffees, engaging on social media, recording interviews and podcasts and so on, not to mention managing a busy practice as an international commercial arbitrator, I am conscious that all these events are depleting the social capital I have built up over the past few years and they cannot continue indefinitely without a chance to refill that social capital reserve.
As an independent arbitrator the vast majority of my appointments come through personal interactions, whether through counsel recommending me after appearing before me, opposing counsel remembering me from my days as an advocate, or from individuals who have heard me speak at conferences and with whom I have chatted during breaks. This personal connection has always been at the heart of obtaining appointments as an arbitrator and, whilst there are certainly arguments to be made against this approach, there are strong counterarguments to the effect that the personal network delivers a degree of certainty in terms of the quality of the arbitrator and provides a better understanding of their approach. The pandemic has effectively removed one prong of my marketing strategy: that of in person networking and I have to somehow compensate for that to maintain my flow of appointments. But that is not the only effect it has had.
Yes, coronavirus has brought out the best in many of us in numerous ways. Webinars are often free of charge and, if not, are at least more affordable than conferences, and we are not constrained geographically as to which events we can attend. Just last week alone I had virtual coffees with colleagues in Australia, Austria, North Carolina, Houston and London. Next month I will chair a virtual merits hearing with witnesses giving evidence from their homes and offices across the world and I will speak at events in Hong Kong, Sarajevo and Dublin. I am acutely aware that technology makes all this possible. That said, I am increasingly aware that every on screen interaction not only depletes the social capital I have built up with the other participants, but it depletes my reserves generally. I have long been a cheerleader for technology, particularly in relation to reducing our environmental footprint, but we are not well served if we do not acknowledge the challenges of the virtual environment. Conducting an international arbitration practice entirely remotely is a short term fix, not a long term solution.
Communicating on screen is exhausting. Humans are fundamentally attuned to the presence of other humans. We monitor movement, breathing, gaze. In a meeting we constantly scan for non-verbal cues. Conversation, both in person and over the telephone, has a rhythm borne out of years of interactions. On screen, that rhythm evaporates. Body language cues are easily misinterpreted. Someone not looking at the camera on their screen may be perceived, entirely wrongly, as evasive. Where we hear words before we see the accompanying facial movements we may misunderstand the point made, or at least not appreciate the subtlety of the point. As an arbitrator, one of my core skills is people management, particularly during the hearing. I am highly attuned to everyone in my hearing room, I pride myself on my ability to read the room and react appropriately. No remote hearing can truly replicate the nuances of an in person hearing. Of course, in the future I would like to see more hybrid hearings, with less unnecessary travel and more awareness of what technology can do. But there should also be greater awareness of what technology can’t do. In the meantime, we must try and compensate for the shortcomings of the technology, by switching the medium from screen to telephone from time to time, by keeping screen meetings short, by making sure our audio and visual positioning is as good as possible (invest in external microphone/good webcam/good lighting/good space) and, above all, by acknowledging our fundamental need for in person contact.
